If ACTA Is Approved In The US, It May Open The Door For The President To Regularly Ignore Congress On International Agreements

from the bad-news dept

On of the sneakier parts of ACTA is that the White House has insisted from the beginning that the document is not a binding treaty. Instead, it insists that ACTA is merely an "executive agreement." Of course, the only real difference is that an executive agreement doesn't require the Senate to ratify it. Basically, the US is calling it an executive agreement so that the administration can sign on without any oversight or scrutiny on the treaty. The Europeans, in the meantime, never got the "ix-nay on the inding-bay eaty-tray" notice from the US folks, and have been happily declaring ACTA a binding treaty as it clearly is.

However, many legal experts have noted that this raises serious constitutional questions, as the Constitution simply does not allow this kind of agreement to be signed without Senate approval. Amusingly, Senator Biden -- back during the previous administration -- was one of the leading voices in trying to prevent President Bush from signing an "executive agreement" with Russia, without getting Senate approval. One wonders if he's magically changed his mind.

However, more and more people are getting concerned about this breach of the Constitution. James Love points us to a new paper at the American Society for International Law by Oona A. Hathaway and Amy Kapczynski, which worries about the precedent this will set if Obama signs it as an executive agreement and bypasses the Senate entirely.
No comparable agreement has been concluded in this way. Thus if concluded as a sole executive agreement, it would represent a significant expansion of the scope of such agreements. As a result, it could pave the way for more extensive use of sole executive agreements in the future. That, in turn, could have implications for the nature of democratic control over international legal agreements concluded by the United States, as well as the legitimacy of these agreements both at home and abroad.
Furthermore, the report notes that it does not seem Constitutional for the President to sign such a document as an executive agreement. The only things that can be signed as an executive agreement are things that are solely under the President's mandate. But intellectual property laws are clearly afforded to Congress and not the President under the Constitution -- meaning that he has no authority to sign this document without it first being approved by the Senate. The report notes that President Bush also tried to expand executive agreements, and ACTA would be a massive expansion in what could be covered under such agreements, taking away tremendous authority and oversight from Congress.
Setting a precedent for more expansive use of sole executive agreements has consequences not only for intellectual property law, but for any area in which an international agreement may be concluded—which is to say, nearly any area of law. International law now reaches into almost every aspect of our day-to-day lives. The possibility that such legal commitments could be made by the President without the input, much less approval, of Congress or the public raises serious questions about the potential of these agreements to undermine democratic lawmaking writ large
This is pretty troubling for a variety of different reasons, and it seems like Congress itself should be pretty concerned about this attempt to take away its oversight on international agreements.

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  1. icon
    Ben (profile), 30 Aug 2011 @ 4:02am

    Re:

    Agreed. Congress and the president just go with the loudest lobbyist surely?

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